BALWINDER KAUR Vs. BAWA SINGH

JUDGEMENT

(1.) This is a regular second appeal directed against the judgment and decree dated 4-10-1999 passed by the Additional District Judge, Kapurthala, reversing that of Addl. Senior Sub Judge, Sultanpur Lodhi, dated 1-10-1993, whereby the latter had dismissed the respondent-plaintiff Bawa Singh's suit for possession of land measuring 57 Kanals 6 Marlas as detailed in the heading of the plaint.

(2.) This regular second appeal has arisen in the following circumstances :- Bawa Singh, plaintiff (respondent-herein) filed suit for possession of land measuring 57 kanals 6 marlas as detailed in the heading of the plaint against Surjan Singh (dead/represented through his legal representatives Chaman Kaur etc.) and Smt. Balwinder Kaur wife of Malkiat Singh through specific performance of the agreement to sell dated 30-6-1991 executed by Surjan Singh whereby he had agreed to sell land measuring 57 kanals 6 marlas for a sum of Rs. 2,50,689.00 minus Rs. 2,05,000.00 paid as earnest money at the time of execution of the agreement to sell, in the alternative for the recovery of Rs. 2,50,689.00 i.e. Rs. 2,05,000.00 paid as earnest money plus Rs. 45,689.00 as damages arising out of breach of the agreement to sell dated 30-6-1991, as a consequential, relief for permanent injunction restraining the defendants from allocating the suit land to anybody else than him (plaintiff) and also that the defendants be restrained from taking forcible possession of the land. It is alleged in the plaint that vide agreement to sell dated 30-6-1991, Surjan Singh defendant agreed to sell the suit land measuring 57 kanals 6 marlas as detailed in the heading of the plaint to him at the rate of Rs. 35,000.00 per kila. Surjan Singh received Rs. 2,05,000.00 as earnest money at the time of agreement to sell. Out of land measuring 57 kanals 6 marlas which was agreed to be sold, land measuring 30 kanals 14 marlas is situated in village Amarjitpur and the remaining land measuring 26 kanals 12 marlas is situated in village Gill, Tehsil Sultanpur Lodhi, Possession was given to the plaintiff at the time of execution of the agreement to sell. The sale deed was to be executed and got registered on or before 30-4-1992 on receipt of the remaining sum of Rs. 45,689.00, (Rupees 2,05,000/- having already been paid to Surjan Singh as earnest money at the time of agreement to sell). It was stipulated in the agreement that in case the plaintiff ran away from performing his part of the agreement, the earnest money paid by him would stand forfeited and the agreement would stand cancelled. In case, Surjan Singh ran away from performing is part of the agreement, he (plaintiff) as entitled to enforce the said agreement through Court and get decree for specific performance. He was also made entitled to get back the earnest money as also damages to an amount equal to the amount of the earnest money. In violation of the terms of the agreement to sell dated 30-6-1991, Surjan Singh sold his entire suit land to Smt. Balwander Kaur on 18-10-1991 and 4-11-1991 through two sale deeds. It is alleged in the plaint that these sale deeds are not binding upon him as these were executed by Surjan Singh in favour of Smt. Balwinder Kaur in breach of the earlier agreement to sell dated 80-6-1991. When he (plaintiff) came to know about the execution of the sale deed dated 18-10-1991 and 4-11-1991 by Surjan Singh in favour of Smt. Balwinder Kaur, he issued written notice dated 4-4-1992 through his counsel under certificate of posting, calling upon Surjan Singh and Smt. Balwinder Kaur to execute and get registered sale deed in favour of the plaintiff as per terms and conditions of the agreement to sell dated 30-6-1991. The defendants did not reply. The defendants were called upon to be present in the Tehsil Complex on 20-4-1992 for executing and registering the sale deed in favour of the plaintiff but in Jain. It is further alleged in the plaint that on 20-4-1992, he went to the Office of the Sub Registrar and remained present there from morning till evening, waited for the defendants the whole day long but they did not turn up. In the evening, he swore an affidavit before the Executive Magistrate, Sultanpur Lodhi, in token of his presence in the office of the Sub Registrar throughout the day on 20-4-1992.

(3.) Surjan Singh contested the suit of the plaintiff urging that he never executed the agreement to sell dated 30-6-1991 which is being set up by the plaintiff. He had not received any earnest money, much less Rs. 2,05,000.00. It is a fabricated document prepared by the plaintiff in collusion with the scribe and the attesting witnesses. In fact, he (Surjan Singh) had already executed an agreement to sell dated 19-4-1991 in favour of his daughter Smt. Balwinder Kaur and pursuant to that agreement, he executed in her favour sale deed dated 18-10-1991 qua 76 kanals 12 marlas situated in village Gill along with engine and electric motor and all rights appurtenant thereto for a consideration of Rs. 1,29,000.00 and another sale deed dated 4-11-1991 regarding land measuring 80 kanals 14 marlas situated in village Amarjitpur, Tehsil Sultanpur Lodhi along with 3 H.P. electric motor and all rights appurtenant thereto for a consideration of Rs. 1,60,000.00 in her favour. Smt. Balwinder Kaur is in possession of the land measuring 57 kanals 6 marlas since then as owner.